19-000132 Earron Shields vs. Department Of Business And Professional Regulation, Florida Real Estate Commission Status: Closed Recommended Order on Monday, July 15, 2019.

Summary: Applicant failed to demonstrate that he was eligible for licensure as a sales associate or broker.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E ARRON SHIELDS,

Petitioner,

vs. Case No. 19 - 013 2

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, FLORIDA

REAL ESTATE COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a final

hearing by video teleconference in this matter on April 16 , 2019,

at sites in Altamonte Springs and Tallahassee, Florida.

APPEARANCES

For Petitioner: Ale jandro L . Marriaga, Esq uire

The GM Law Firm

Suite 420

1707 Orlando Central Parkway

Orlando, Florida 32808 - 5783

For Respondent: Robert A ntonie Milne, Esquire

Thomas L. Barnhart, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner 's application for a real

estate license should be denied for th e reasons stated in

Respondent's Notice of Intent to Deny , dated November 2, 2018.

PRELIMINARY STATEMENT

On November 2, 2018, Respondent, Department of Business and

Professional Regulation, Florida Real Estate Commission

(Commission), informed Petitioner t hat his application for a real

estate license was denied based on his criminal record;

unpersuasive testimony in explanation/mitigation; recent criminal

history; pattern of crime; insufficient time , free of government

supervision , to establish rehabilitati on; other license

discipline; and being a convicted felon. The Notice of Intent to

Deny states that the foregoing reasons constitute sufficient

grounds under chapter 475, Florida Statutes, to deny the

application . 1/ Petitioner timely requested a hearing to contest

this determination, and the matter was referred to the Division

of Administrative Hearings to resolve the dispute.

At the hearing, Petitioner , who currently reside s in

Minnesota, testified by telephone on h is own behalf and presented

the post - he aring deposition testimony of two character witnesses .

The Commission did not present any witnesses. Commission

Exhibits 1 through 11 were accepted in evidence.

A one - volume T ranscript of the hearing was prepared. The

Transcripts of the depositions w er e filed on June 20 , 2019.

Proposed findings of fact and conclusions of law (PRO s ) were

timely filed by the parties, and they have been considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. The Commission is the state agency charg ed with

licensing real estate brokers and sales associates in Florida.

See § 475.161, Fla. Stat.

2. On August 17, 2018, Petitioner filed with the Commission

an application for a R eal E state B roker L icense Î Out of State

Experience . According to his PR O, however, he is applying for a

"real estate associate license." In conjunction with the

application, a lengthy and some what confusing record of

Petitioner's administrative and criminal history in New York and

Minnesota between 199 5 and 2018 has been com piled and is found in

Commission Exhibit 11 , consisting of approximately 300 pages .

Besides holding a n active Colorado real estate license, he also

has a mortgage originator's license issued by the S tate of

Minnesota in 2018.

3. The application require d Petitioner to provide answers

to four background questions. In response to question 1 , which

asks the applicant if he has ever been convicted or found guilty

of, or entered a plea of nolo contendere or guilty to, regardless

of adjudication, a crime in any jurisdiction, or is cu rrently

under criminal investigation, Petitioner answered yes. In his

explanation to th e question, Petitioner listed four arrests,

discussed below, all occurring in the S tate of Minnesota.

Although the Notice of Intent to Deny alle ges that he was

convicted of a felony, the Commission now concedes that all

convictions are for misdemeanors.

4. First, on July 1, 1997, Petitioner , then 22 years old,

was arrested for one felony count of criminal sexual conduct in

the first degree and two felony counts of criminal sexual conduct

in the third degree. In May 1998, h e pled guilty to fifth degree

sexual conduct, a gross misdemeanor, and was fined $900.00,

se ntenced to nine days in jail, placed on two years' probation ,

ordered to undergo se x offender treatment, and required to

register as a sex offender for ten years in New York (where he

had relocated temporarily ) and Minnesota . Petitioner completed

all conditions required by the court .

5. In his application, Petitioner explained that t h e arrest

a n d conviction were the result of "interactions with an underaged

woman [a 15 - year - old babysitter for his fiance e 's child ] that

lied about her age." At hearing, he testified that he pled

guilty to the misdemeanor charge because he did not have

s ufficient funds to continue to fight the original felony

charges, and he "did not want to take the chances with the jury,"

even tho ugh the prosecutor admitted to the court the defendant 's

attorney "can kill our guys on cross - examination." He decided to

"t ake the misdemeanor and get on with [his] life." Pet itioner

acknowledges that he pled guilty to a sexual offense, but it is

fair to find that he wants the Commission to accept his version

of events - that the girl fabricated the entire incident .

6 . Secon d, o n July 10, 1997, Petitioner was arrested for

disorderly conduct , a misdemeanor, after an "[ a ] rgument with

girlfriend and her brother . " He was found guilty of the charge

and paid a $150.00 fine.

7 . Third, in October 2008, while in a divorce proceedi ng

with his then wife, Petitioner was charged with violation of an

O rder for P rotection for "exchanging messages with my wife on

childcare/exchange matters which were allowed according to the

original order. She called in and filed a complaint. " The

appl ication states that the charge was later dismissed. The

Commission does not dispute th is representation.

8 . Finally, in November 2008, Petitioner was arrested for

gross misdemeanor domestic assault against his then wife.

Petitioner explained that this i ncident occurred after an

"argument with wife (she was heavily intoxicated) that

escalated." He later pled guilty to disorderly conduct, paid a

$300.00 fine , and was given one year of unsupervised probation.

He successfully completed all condition s impos ed by the court .

9 . Question 1 requires that an applicant also report

traffic offenses other than parking, speeding, inspection, or

traffic signals. The Commission 's PRO points out that Petitioner

failed to disclose that in 1995, while a resident of the S tate of

New York, he pled guilty to operating a motor vehicle

(motorcycle) while impaired by drugs (marijuana) . At hearing,

Petitioner testified that he forgot about th e traffic violation,

as it occurred 24 years ago when he was only 20 years old. Even

though t he Notice of Intent to Deny does not allege that

Petitioner failed to disclose his complete criminal record , the

issue was tried by consent at hearing . However , Petitioner's

omission of this minor item should have no bearing on whether to

approve or deny the application .

10 . Qu estion 4 asks the applicant to disclose whether he

ever has ha d a license to practice any regulated profession

revoked, annulled, suspended, relinquished, or otherwise

disciplined in any jurisdiction. Petitioner answered ye s.

1 1 . In explaining his answer to question 4 , Petitioner

stated that his Minnesota real estate broker license was revoked

by the Department of Commerce in May 2018 for (a) failure to

self - report a 2008 bankruptcy ; (b) the denial in 2009 of his

applicatio n for a residential general contractor's license ; and

(c) a 2012 felony charge ( domestic assault by strangulation of

his ex - wife ) , which was dismissed later . The application added

that due to the revocation of the Minnesota license, his Colorado

realtor l icense "is currently in review . " At hearing, however,

Petitioner testified that Colorado is not taking any action on

that license.

1 2 . The revocation o rder provided in part that Petitioner

obtained his license by fraud and misrepresentation, he had a

c omplete disregard for the law, and he could not be trusted to

make material disclosure s and otherwise comply with licensing

requirements. See Comm . Ex. 11 , p. 208 . Obtaining a license by

fraud and /or misrepresentation, and not being trusted to make

mater ial disclosures and comply with licensing requirements , are

grounds for revoking or suspending a license in the state of

Florida had Petitioner then been registered. At hearing,

Petitioner testified that he a ctually had disclosed the

bankruptcy and admini strative action to the state when he

submitted an application to transfer a brokerage license in 2009.

Evidently, t his contention was not accepted by the Department of

Commerce. Petitioner says he "attempted" to appeal the

revocation order, but the appea l was denied.

1 3 . In its PRO, t he Commission alleges that Petitioner

failed to disclose an enforcement action instituted by the

Minnesota Department of Labor and Industry ( MDLI ) in 2009 , which

resulted in him voluntarily consent ing to the revocation of a

residential building contractor license held by Vanquish Custom

Homes, LLC, a company he controlled. Although this omission is

not cited in the Notice of Intent to Deny, the issue w as raised

at hearing without objection by Petitioner.

14. Petitioner' s response to b ackground question 3

acknowledges that his application for a "residential general

contractor ' s license " was denied in 2009 . Also, i n a letter

attached to the application, Petitioner made reference to that

action, although in a somewhat conf using and incomplete manner.

See Comm. Ex. 11, p. 187. The letter fail s to disclose that the

proceeding arose in the context of an enforcement action by MDLI ,

which alleged , among other things, that Petitioner was

untrustworthy, incompetent, and unqualif ied to act as a

licensee's qualifying owner . The letter and application also

fail to disclose that MDLI issued a consent order revoking the

license , impos ing a $5,000.00 suspended civil fine , and order ing

him to cease and desist from acting as a residenti al building

contractor. Had Petitioner been registered in the state of

Florida, these actions would have been grounds to suspend or

revoke the license.

1 5 . At hearing, Petitioner explained that the license

lapsed around 2007, he reapplied for licensure i n 2008, but he

withdrew the application after MDLI issued a n intent to deny. He

says he took this action because he "didn't need the contractor

license, and it just wasn't worth spending the money to fight

it."

1 6 . By consent of the parties, Petitioner a cknowledged that

he failed to disclose a consent order issued by MDLI in 2013 ,

which determined that Vanquish Services Group, LLC, a nother

company controlled by Mr. Shields , had violated the 2009 c onsent

o rder. Petitioner was ordered to cease and desist f rom any

further residential building contractor violations and to pay a

$ 5,000.00 civil penalty , of which $4 , 500.00 was stayed . At

hearing, Petitioner testified that in an effort to procure

clients, his company incorrectly advertised four trades on

Angie 's List , wh en the company was allowed no more than three

trades to be advertised . He admits this was a "mistake."

1 7 . Two character witnesses, Mr. Hartos and Ms. Anderson,

both currently licensed as realtors in Minnesota, testified on

behalf of Petitio ner . Both testified that they are aware of his

prior administrative and criminal history. Mr. Hartos is a long -

time licensed broker, who has served on the Minnesota Association

of Realtors Board of Professional Standards for more than 25

years , and was P etitioner's broker and "boss" for the last five

years. The other is a former employee . Based on their work

experience w ith Petitioner, they found him to be ethical,

truthful, honest, and trustworthy , and not a danger to the

public . Forty - three letters o f recommendation, including those

submitted by the two character witnesses, all hearsay in nature,

corroborate th is conclusion.

CONCLUSIONS OF LAW

1 8 . Petitioner challenges the Commission 's denial of his

application for a broker/ sales associate license. He carries the

ultimate burden of persuasion in this proceeding. Dep't of

Child. & Fams. v. Davis Fam. Day Care Home , 160 So. 3d 854, 857

(Fla. 2015).

1 9 . In an application denial case, howeve r , the agency has

the burden to prove the specific acts or v iolations which it

alleges are grounds for denial. See , e.g. , M.H. v. Dep't of

Child. & Fams. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008).

20 . Alt hough the Notice of Intent to Deny cites multiple

grounds for denying Petitioner's application, i n its PRO, th e

Commission relies on only t hree : the 1997 conviction for a

sexual offense, which it contends constitutes a crime involving

moral turpitude or a crime directly related to the activities of

a broker or sales associate ; the r evocation of Petitioner's real

estate broker license in 2018 ; and an insufficient lapse of time

and subsequent good conduct and reputation since the se two

incidents occurred. The PRO cites sections 475.17(1)(a)

and 475.25(1)( f ) , (g), and (s) , Florida Statutes, as the

statutory ba s es to support those charges .

2 1 . Section 475. 17(1)(a) provides, in relevant part , as

follows:

(a) An applicant for licensure . . . must be

honest, truthful, trustworthy and of good

character; and have a good reputation for

fair dealing. An applicant for an active

broker's license must be competent and

qualified to make real estate transactions

and conduct negotiations therefor with safety

to investors and to those with whom the

applicant may undertake a relationship of

trust and confidence. . . . [I] f the

applicant has been guilty of conduct or

practices in this state or elsewhere which

would have been grounds for revoking or

suspending his or her license under this

chapter had the applicant then been

registered, the applicant shall not be deemed

to b e qualified unless, because of lapse of

time and subsequent good conduct and

reputation, or other reason deemed

sufficient, it appears to the commission that

the interest of the public and investors will

not likely be endangered by the granting of

registra tion.

22 . Section 475.25(1) authorizes the Commission to deny an

application for licensure if it finds the applicant:

( f ) Has been convicted or found guilty of,

or entered into a plea of nolo contendere to,

regardless of adjudication, a crime in any

jur isdiction which directly relates to the

activities of a licensed broker or sales

associate, or involves moral turpitude or

fraudulent or dishonest dealing . The record

of conviction certified or authenticated in

such form as to be admissible in evidence

un der the laws of the state shall be

admissible as prima facie evidence of such

guilt.

(g) Ha s had a broker's or sales associate's

license revoked, suspended, or otherwise

acted against, or has had an application for

such licensure denied, by the real esta te

licensing agency of another state, territory,

or country.

* * *

(s) Has had a registration suspended,

revoked, or otherwise acted against in any

jurisdiction. The record of the disciplinary

action certified or authenticated in such

form as to be admissible in evidence under

the laws of the state shall be admissible as

prima facie evidence of such disciplinary

action.

2 3 . The Commission carried its burden of proving that

Petitioner pled guilty to a criminal sexual offense in 1 998 , and

that Petitioner 's real estate broker license was revoked by the

s tate of Minnesota in May 2018.

2 4 . The Commission argues that the sexual offense directly

relates to the activities of a broker or sales associate , and the

crime involves moral turp itude. See § 475.25(1)(f), Fla. Stat.

To support this allegation, t he Commission relies on the

rationale in Raines v. Construction Industry Licensing Board ,

Case No. 08 - 2718 (Fla. DOAH Dec. 15, 20 0 8 ; F CILB July 23, 2009 ) .

In Raines , an applicant for a c ertified residential contractor

license had been found guilty in 199 1 of attempted capital sexual

battery on a person under the age of 12 years (his step -

daughter), and guilty in 1999 of possession of child pornography

on his computer . A dministrative L aw J udge E.J. Davis found that

the crime related to the practice of contracting " because a

residential contractor has greater access to private homes than

laymen or many other professionals ; because a licensed

residential contractor is automatically extended a higher level

of trust by consumers' families than is a typical unlicensed

construction worker ; and because there is a substantial potential

that homeowners will entrust a licensed residential contractor in

their home and near their children, while expect ing the licensee

to oversee his on - premises staff . " Therefore, she concluded

that , by virtue of the conviction s , the applicant was not of

"good moral character," and there was a substantial connection

between the lack of good moral character of the applic ant and the

professional responsibilities of a certified contractor.

2 5. There is no evidence describing the activities that a

broker or sales associate typically engage in, and whether the

acts described in the 1998 conviction directly relate to th os e

a ctivities . Given this evidentiary shortcoming, and h aving

reviewed the Raines case, the cited authority is deemed to be

unpersuasive on this issue .

2 6 . The Commission also contends the sexual offense

involves moral turpitude. § 475.25(1)(f), Fla. Stat. Moral

turpitude has been defined by the Supreme Court , in part , as

"anything done contrary to justice, honesty, principle, or good

morals." State ex rel Tullidge v. Hollingsworth , 146 So. 660,

661 (Fla. 1933). In other words, if the crime "reflects on the

honesty, integrity, and good morals of the offender," it is a

crime of moral turpitude. Cambas v. Dep't of Bus. & Prof'l Reg. ,

6 So. 3d 668, 671 (Fla. 5th DCA 2009).

27. The difficulty in delineating in a general way which

crimes are, or are not, o nes involving moral turpitude is spelled

out in Nelson v. Department of Business and Professional

Regulation , 707 So. 2d 378 (Fla. 5th DCA 1998). In cases where

crimes involving moral turpitude ha ve been used in disciplining

real estate licensees, t he cou rts have held that drug

trafficking, manslaughter, bookmaking, and leaving the scene of

an accident with injuries involve moral turpitude, while criminal

mischief, possession of a controlled substance, and unlawful

possession of lottery tickets do not. Se e Cambas , 6 So. 3d at

670 n. 2.

28. Illicit sexual activity with a 15 - year - old female

clearly reflects on the honesty, integrity, and good morals of

the offender. This is especially true here as the court required

Petitioner to register as a sex offend er for ten years, undergo

sex offender treatment, and to have no contact with the victim.

While Petitioner contends that the victim fabricated the entire

incident, this proceeding is not a forum in which the underlying

facts of that crime may be relitigat e d . It is concluded that the

crime involves moral turpitude.

29. The crime occurred 22 years ago , which in most cases

would constitute a sufficient lapse of time since the offense.

However, given the string of arrests /convictions and

administrative ac tions since that time , the undersigned cannot

conclude that Petitioner has demonstrate d subsequent good conduct

and reputation since the plea of guilty . § 475. 17 (1)(a), Fla.

Stat.

30 . The 2018 revocation of the broker license is also a

statutory ground f or denying licensure. § § 475.17(1)(a)

and 475.25(1)(g) and (s) , Fla. Stat. Unless there is a "lapse of

time and subsequent good conduct and reputation , or other good

reason deemed sufficient" since the revocation, an applicant

shall not be deemed t o be qualified for licensure. Only

14 months ha ve passed since revocation occurred. Under any

reasonable interpretation of the term "lapse of time," Petitioner

cannot, at this time, satisfy the statutory requirement. Given

this conclusion, it is unnecessary to consider the 2009 consent

order, which was issued after the S tate of Minnesota initiated an

enforcement action against Petitioner's residential building

contractor license . § 475.25(1)(s), Fla. Stat.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a

fi nal order denying Petitioner's application for a license as a

real estate broker or sales associate.

DONE AND ENTERED this 1 5 th day of Ju ly , 2019 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850 ) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of Ju ly , 2019 .

ENDNOTE

1/ Although t he Commission's practice, when denying an

application, is to enter a brief order advising an applicant th at

an application has been denied, the nuts and bolts of the denial

are found in a "Key for License Denials " form , which is attached

to the order . There the Commission places a check mark beside

th os e facts ( of which there are nine) and conclusions of law (of

which there are 13) which apply to a particular applicant . In

this case, the Commission checked seven fact boxes and four

conclusions of law boxes.

COPIES FURNISHED:

Ale jandro L . Marriaga, Esquire

The GM Law Firm

Suite 420

1707 Orlando Central Par kway

Orlando, Florida 32808 - 5783

(eServed)

Robert A ntonie Milne, Esquire

Thomas L. Barnhart, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Thomas Luzier , Chair

Florida Real Estate Commis sion

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801

Ray Treadwell, General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.